Question Submitted by: The Honorable Roger Thompson, Oklahoma State Senator, District 82017 OK AG 16Decided: 12/20/2017Oklahoma Attorney General Opinions

Dear Senator Thompson:

¶0 This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following questions:

> 1. Does 

69 O.S.2011, § 1722

I.

Background

¶1 The Oklahoma Highway Code of 1968 (the "Highway Code") governs Oklahoma's road and highway system. See 

69 O.S.2011 & Supp.2017, §§ 101
1
69 O.S.2011, § 101

¶2 While the principal object of a road or highway system is public passage, public utilities are often permitted to place their facilities within the right-of-way of a road. 39A C.J.S. Highways § 208. However, this right is not unfettered. A utility's use of a roadway right-of-way

2
69 O.S.2011, § 1722
3

¶3 Separately, the Rural Water, Sewer, Gas and Solid Waste Management Districts Act (the "Act") permits county commissioners to establish public nonprofit rural water, sewer, natural gas, or solid waste districts to serve the needs of rural residents, and specifies that such districts may use public roads and highways. See 

82 O.S.2011, §§ 1324.1

II.

Discussion

¶4 We begin with the recognition that "[s]tatutory interpretation is governed by legislative intent, and legislative intent is ascertained from a statute's plain language." Brisco v. State ex rel. Bd. of Regents of Agric. & Mech. Colleges, 

2017 OK 35
394 P.3d 1251
2010 OK 50
243 P.3d 1171
2006 OK 78
145 P.3d 1097
> A. Title 69, Section 1722 exempts a rural water district from paying the costs to move a water line when necessary for a turnpike construction project and requires such costs to be borne by the Oklahoma Turnpike Authority

As noted above, when a rural water district's water line is placed in a roadway right-of-way, any relocation or rearrangement of existing public utility or common carrier facilities that is necessary "to permit or accommodate installation or maintenance" of the district's water line is at the sole cost of the district. 

82 O.S.2011, § 1324.10
69 O.S.2011, § 1722

¶5 The requirement in Section 1722(A) is a codification of the common law rule imposing such costs on utility owners. See 39A C.J.S. Highways § 210 ("Public utilities ordinarily may be required to remove or relocate their facilities at their own expense from public highways and streets where it becomes necessary for improvement for public use and convenience. This is the rule at common law, and it applies in the absence of express statutory provisions to the contrary."). Nevertheless, Section 1722(A) also specifies that, where otherwise provided by statute or agency order, this requirement may not apply. To that end, Section 1722(C) provides as follows:

> Rural water districts...shall be exempt

69 O.S.2011, § 1722(C) (emphasis added).4

¶6 The language of the statute is plain and unambiguous. The default rule under Section 1722 is that when removal or relocation of utility facilities placed in a turnpike right-of-way is necessary for turnpike improvements, construction, or reconstruction, the utility owner is responsible for the costs of removal or relocation. However, the Legislature specifically exempted rural water districts, among other entities, from this rule.

5
69 O.S.2011, § 1701
2016 OK 89
381 P.3d 768

¶7 Accordingly, a rural water district is exempt from paying the cost of relocating or removing its water lines located within a turnpike right-of-way when removal or relocation is necessary for the improvement, construction or reconstruction of a turnpike.

> B. The Oklahoma Turnpike Authority may not require a rural water district, as a condition of granting a license or permit to locate the district's water lines in a turnpike right-of-way, to agree to pay costs for which the district is exempt under Title 69, Section 1722.

¶8 OTA has broad authority over the location and removal of utility facilities placed upon, across, or under a turnpike. See 

69 O.S.2011, § 1722
82 O.S.2011, § 1324.10
1980 OK 147
618 P.2d 401

¶9 While the placement or removal of utility facilities on turnpike rights-of-way is subject to OTA jurisdiction, OTA does not have express or implied authority to require a rural water district to pay costs that the district would otherwise be exempt from paying under Section 1722(C). To the contrary, Section 1722(C) not only exempts rural water districts from paying these costs; it requires OTA to pay them. This is a clear and unambiguous duty. Samman v. Multiple Injury Tr. Fund, 

2001 OK 71
33 P.3d 302
2013 OK 36
302 P.3d 775
> C. A rural water district and the Oklahoma Turnpike Authority cannot agree to waive the statutory requirements of Title 69, Section 1722.

¶10 In general, a "waiver is the voluntary and intentional relinquishment of a known right." Barringer v. Baptist Healthcare of Okla., 

2001 OK 29
22 P.3d 695
1976 OK 57
551 P.2d 256

¶11 A rural water district's agreement to waive its rights under the exemption, and thereby assume OTA's statutory obligation, would be a contract. See 

15 O.S.2011, § 1
1977 OK CIV APP 39
569 P.2d 553
1962 OK 241
377 P.2d 583
6

¶12 It is, therefore, the official Opinion of the Attorney General that:

> 1. A rural water district is exempt from paying the costs associated with removing or relocating the district's existing water lines or other facilities that are located in a turnpike right-of-way when removal or relocation is necessary for improvement, construction, or reconstruction of the turnpike. 

69 O.S.2011, § 1722
> 2. The Oklahoma Turnpike Authority does not have the express or implied authority to require a rural water district, as a condition of granting a license or permit to locate the district's water lines or other facilities in turnpike right-of-way, to agree to pay costs that the district is exempt from paying under 

69 O.S.2011, § 1722
> 3. Any agreement between a rural water district and the Oklahoma Turnpike Authority to waive the district's exemption under 

69 O.S.2011, § 1722
15 O.S.2011, § 211
1962 OK 241
377 P.2d 583

Mike HunterAttorney General of Oklahoma

Matthew LaFonAssistant Attorney General

FOOTNOTES

1 The governing body of a particular road or highway is "[t]he legislative authority of any city or town for all streets and highways within the corporate limits of such city or town; and the board of county commissioners of each county as to all county highways; and the State Highway Commission of the State of Oklahoma as to all state highways." 69 O.S.2011, § 219.

2 In this context, a right-of-way is "[a] general term denoting land, property, or interest therein, usually a strip acquired for or devoted to a highway use." 69 O.S.2011, § 236.

3 The Department of Transportation and boards of county commissioners exercise similar authority over utility facilities located upon, across, or under roadways subject to their jurisdiction. See 69 O.S.2011, § 1403(A).

4 Similar language appears in Title 69, Section 1403 regarding the relocation of rural water district pipelines located in rights-of-way of "any road or highway which is part of the state highway system or turnpike project." See 69 O.S.2011, § 1403(D), (F).

5 As the Court of Civil Appeals has recognized, "[r]ural water districts are created by statute and are thus controlled by the protection given to them by these statutes." Bd. of Cty. Comm'rs of Creek Cty. v. Creek Cty. Rural Water Dist. No. 2, 1994 OK CIV APP 166, ¶ 14, 888 P.2d 540, 543.

6 Similarly, "contracts of public officials entered without constitutional, statutory or other authority are void." Nichols v. Jackson, 2002 OK 65, ¶ 1, 55 P.3d 1044, 1045--46.